Judge: Linda S. Marks, Case: 2021-01217032, Date: 2022-10-17 Tentative Ruling

Motion to Compel Production filed by Paula Al McDonald on 7/7/22

Plaintiff Paula Ana McDonald (“Plaintiff”) moves to compel Defendant Jason Ryan Chacon (“Defendant”) to serve further response to Plaintiff’s Demand for Inspection, Set One, No. 14 on the ground that Defendant’s objections to the Demand are meritless.

A demanding party may move for an order compelling further response to a demand for inspection if a statement of compliance with the demand is incomplete, a representation of inability to comply is inadequate, or an objection is without merit or too general. (Code Civ. Proc., § 2031.310(a).) The motion must be accompanied by a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310(b)(2).)

On June 29, 2022, Plaintiff sent a meet and confer letting requesting further response to, among other requests, Demand No. 14. (Declaration of Megan E. Klein, Ex. 3.) On July 6, 2022, Plaintiff sent a follow up email on the meet and confer letter because no response had been received. (Id., Ex. 4.) As of the time of filing, no response to Plaintiff’s meet and confer efforts had been received from Defendant. (Id., ¶ 7.) Plaintiff has satisfied her burden to meet and confer prior to filing this Motion.

Demand No. 14 asks for a copy of Defendant’s cellphone statements that covered the time period of October 17, 2019 from 12:30 p.m. to 1:30 p.m. Defendant responding by stating that the Demand seeks irrelevant information and invades his right to privacy. He also states in response that he was not using his cell phone in any capacity immediately before or during the collision.

“The constitutional right of privacy is not absolute; it may be abridged to accommodate a compelling public interest. [Citations.] One such interest, evidenced by California’s broad discovery statutes, is ‘ “the historically important state interest of facilitating the ascertainment of truth in connection with legal proceedings.” ’ [Citation.]” (Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 316, disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8.)

Williams v. Superior Court (2017) 3 Cal.5th 531, 552, explains:

“The party asserting a privacy right must establish a legally protected privacy interest, and objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citations.] The party seeking information may raise in response whatever legitimate and important countervailing interest disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interest or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. [Citation.]”

Here, Defendant has not opposed the Motion and has therefore failed to demonstrate that the disputed Demand violates his right to privacy. The Demand is narrowly tailored to seek only those documents related to the relevant time period immediately before the collision. Whether Defendant was using his cell phone at or before the collision is relevant to Plaintiff’s claim of negligence.

Tentative Ruling: Plaintiff’s Motion to Compel is GRANTED. Defendant to serve further response to Demand No. 14 within 10 days.

Sanctions:  Plaintiff requests monetary sanctions against Defendant. A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and be accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought. (Code Civ. Proc., § 2023.040.) Here, Plaintiff’s Notice of Motion fails to assert the person, party, and attorney against whom the sanction is sought or to specify the type of sanction sought. Thus, the request for sanctions is DENIED.

Plaintiff to give notice